State v. Whittaker
551 S.W.3d 498 (2018)
Rule of Law:
The use or threat of physical force with a dangerous instrument 'in the course of stealing' to overcome resistance to taking or retaining property constitutes first-degree robbery, even if the perpetrator does not have active physical possession at the exact moment of force, so long as the act of stealing has not been abandoned and the property remains within the perpetrator's control or immediate sphere of influence.
Facts:
- On August 1, 2015, A.M. (Victim) secured his lawn mower in the bed of his pickup truck with a bungee cord after cutting grass in St. Louis.
- Victim and his girlfriend went into a store across the street.
- A store clerk observed Robert Whittaker tampering with Victim's truck and alerted Victim.
- Victim went outside and found Whittaker had removed the lawn mower from the truck bed and placed it on the ground.
- When Victim confronted Whittaker and moved towards him, Whittaker went around the truck but then came back towards Victim with a knife in his hand.
- Whittaker slashed the knife at Victim, grabbed at him, and told Victim to 'get back or he would cut him,' scratching Victim with a fingernail.
- Victim's girlfriend, the store clerk, and two other patrons came out of the store, and Whittaker was informed the police had been called.
- Whittaker then came at the store clerk and other patrons with his knife, but Victim intervened, and Whittaker fled on foot.
Procedural Posture:
- A grand jury charged Robert Whittaker by indictment with first-degree robbery and armed criminal action, alleging he was a prior and persistent offender.
- Whittaker waived his right to a jury trial.
- At the subsequent bench trial, Whittaker admitted to having been found guilty of multiple felonies, but the trial court never made an explicit finding on the record that he was a prior and persistent offender.
- The trial court found Whittaker guilty of both first-degree robbery and armed criminal action.
- The trial court sentenced Whittaker to concurrent terms of fifteen years' imprisonment.
- The written judgment, contrary to the court's oral findings, stated that Whittaker was a prior and persistent offender.
- Whittaker appealed his convictions to the Missouri Court of Appeals, Eastern District.
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Issue:
Does the use or threat of immediate physical force with a dangerous instrument, employed immediately after a confrontation while attempting to steal property, provide sufficient evidence for a first-degree robbery conviction, even if the defendant argues the property was not fully appropriated or that the attempt had been abandoned?
Opinions:
Majority - Philip M. Hess, Judge
No, there was sufficient evidence to prove first-degree robbery. The court found that first-degree robbery occurs when a person 'forcibly steals' property and, in the course thereof, uses or threatens the immediate use of a dangerous instrument. To 'forcibly steal' means using or threatening physical force 'in the course of stealing' for the purpose of preventing or overcoming resistance to the taking or retention of property 'immediately after the taking.' The phrase 'in the course of stealing' is broad and covers the entire transaction or occurrence. The court distinguished State v. Kelly, where the defendant dropped the stolen items and ran before using force, indicating abandonment. Here, Whittaker did not abandon the lawn mower when confronted; instead, he immediately pulled a knife and threatened Victim to prevent him from interfering with the theft, which constitutes using force to overcome resistance to retention of the property. This action was comparable to other cases like Hamilton, Maynard, and Cates, where force was used while the property was still within the defendant's control or immediate sphere of influence, and the purpose was to overcome resistance to the theft. The court determined that it was reasonable to conclude Whittaker was still in the course of stealing the lawn mower when he threatened Victim with a knife, as the lawn mower was still within Whittaker's control after being removed from the truck and placed on the ground. Furthermore, Whittaker had 'appropriated' the lawn mower by moving it from the truck to the ground, regardless of any remaining bungee cord, as 'appropriation' includes taking or retaining possession. The court also addressed a clerical error in the judgment, noting the State conceded the 'persistent offender' finding was erroneous because the indictment did not plead sufficient facts to establish that status and the court never made an explicit finding on the record. Consequently, the court modified the judgment to delete this finding.
Analysis:
This case significantly clarifies the temporal and circumstantial elements required for a first-degree robbery conviction in Missouri, particularly regarding the 'in the course of stealing' and 'forcibly steals' elements. It distinguishes between a defendant abandoning stolen property before using force (which might only be stealing) and a defendant using force or threat of force immediately upon confrontation to overcome resistance to the taking or retention of the property, even if physical possession is momentary or incomplete. This ruling emphasizes that the 'whole, single transaction' of stealing can extend to actions taken to secure escape or retention of property, even if the property is not physically in hand at the precise moment of force, so long as the theft has not been abandoned. This has a direct impact on how prosecutors charge and courts adjudicate robbery cases, focusing on the intent and continuous nature of the criminal act.
